Law and morality Notes for February 18

Main points

Fuller believes that the law has what he calls an internal morality. That means that rules that conflict with this internal moral code cannot be laws.

We discussed what struck me as Fuller’s three strongest arguments against Hart. One concerned the non-legal source of Hart’s rule of recognition, the second concerned the internal morality of law, and the third concerned the appropriate attitude of a judge faced with the Nazi case.

Thanks to Sam, we also discussed what “morality” is. I recommend reviewing Hart’s own remarks on that question as well. See pp. 72–3 of the textbook.

How to start to settle this

Stephanie, Alison, Liz, and Kevin spoke up for Hart’s side. Martin has been a consistent advocate of the opposing view. Johnathan chipped in as well, especially with regard to something like Fuller’s argument on p. 642.

And I wound up impressed by how strong each side is.

It’s tough to settle this. For instance, I agree with Fuller’s remark about how awkward it would be for a judge who accepted Hart’s philosophy of law to address the Nazi case (p. 655). On the other hand, I wonder how much my agreement with Fuller comes from the fact that I’m accustomed to the American system. Perhaps we would be better off if we acknowledged that judges sometimes have to play a legislative role instead of pretending that they only adjudicate questions about what the law is. After all, real judges like Holmes and Frank have told us that is exactly what they do anyway.

I also wonder whether they haven’t come into conflict from slightly different directions.

Hart wants to know if a legal system must intersect with morality. It seems evident to me that Fuller’s point on p. 642 doesn’t show that this is so. But it does seem to me that Fuller has made a good case for thinking that people will take the rule of recognition a lot more seriously if they think it expresses their moral values. So maybe we would be better off if we adopted Fuller’s view of the moral source of law.

Of course, Hart isn’t just an analyst. He advocates keeping law and morality distinct. He thinks we would be better off if we recognized the distinction and made it as clear as possible in our legal institutions and political thinking. Fuller, perhaps, comes from the other direction. He advocates a moral reading of the law and worked his way to the conclusion that there is no analytically sensible way of keeping law and morality distinct. Just a thought.

Anyway, this isn’t easy. And our discussion made it a lot harder for me. Well done!